Gareth Ward
Minister for Families, Communities
and Disability Services &
Michael Coutts-Trotter
Secretary , Professional Conduct, Ethics and Performance Unit
Families, Communities
and Disability Services 10th Dec. 2020
Dear Minister and Mr Coutts-Trotter
re John Smith
I have been informed that you have both been briefed on this matter, and that a decision has been made to ignore my correspondence; to not answer any of my journalist questions.
Some facts you are aware of, for the record:
(Father # 1) is in breach of Federal Court orders in relation to Sally's daughter, (redacted). You both know this.
(Father # 2) is likewise in breach of Children's Court orders. You turn a blind eye.
(Father # 2) and his former partner, (redacted) , lied to FACS (via FACS' outsourced assessor) when they presented themselves last month as a couple living in Ingleside. As you both know, but choose to ignore, (Father # 2) will shortly move to (redacted) without (redacted).
(Father # 2) has had three AVOs taken out against him by three different women. This is no impediment, in FACS' view, to his fostering of John. Sally's discussing gender issues with her highly intelligent son, John, on the other hand, is cited as one reason why she is unfit to be a mother.
You both know these facts.
JK, KD, MS and others within FACS copied on this letter, insist that there is no other placement option for John other than (Father # 2). You both know this to be untrue. Three alternatives have been suggested to FACS, one of which is my own home...(redacted)
You both allow JK, KD, MS along with Robert McLachlan and Dr Ainsworth, to lie with impunity about the lack of alternatives to (Father # 2).
Turning to the Children's Court hearing of 16th Nov, before Magistrate (redacted), commencing at 11 am. The following extracts from the transcript are worthy of comment:
HER HONOUR: Mr You ,no doubt heard. Ms Sally Smith’s phone wasn’t answered.
Comment: (redacted) Court called Sally once on 16th Nov, leaving a message when she was en route, by public transport, to (redacted) library, to meet John. She had her phone turned off. As has been made clear in previous correspondence, Sally had been informed that the matter had been adjourned. That morning I had written to Frank Ainsworth, Robert Mc Lachlan and other FACS staff copied here, asking if Sally's presence in court was required. This email was ignored. (see correspondence)
HER HONOUR: McLachlan, the Secretary is seeking a finding today?
Comment: Sally had been informed that 16th Nov was for mention only; that 3 - 4 days would be set aside for a trial in Parramatta Children's Court.
MCLACHLAN: He is and that was a matter that I canvassed with Dr Ainsworth and-...
Comment: Neither Robert Mc Lachlan nor Dr Ainsworth had 'canvassed' anything with Sally. Dr Ainsworth had spoken not a word with Sally prior to Nov 16th and had ignored her clear instructions, contained in various emails copied to FACS.
HER HONOUR: ... Mr Whelan, the Secretary is seeking--
WHELAN: Yes, the Secretary is seeking a finding as to no realistic possibility of restoration to the mother.
Comment: The Secretary of the New South Wales Department of Communities and Justice is you, Michael Coutts-Trotter. It is you, or others within FACS acting on your behalf, who have recommended to the Court that John be permanently removed from his mother. If you have not been properly briefed about legal actions taken in your name, you need to be.
MCLACHLAN: The guardian supports a finding being made.
Comment: Dr Ainsworth, having never met or spoken with Sally, and in total contravention of her clearly expressed wishes, was acting in the interests of FACS and not of his client, Sally, in breach of his professional obligations as a Guardian ad Litem.
***
HER HONOUR: What’s being relied upon in respect of that?
WHELAN: Your Honour’s recent judgment with respect to not discharge from the guardian, the clinician’s report--
HER HONOUR: Just identify the date of the report for me, please?
WHELAN: Yes, just pardon me for a moment, I apologise. It’s a report of - it doesn’t actually bear a date where (redacted) has signed it. It was released by the Court I think 23 March 2019.
HER HONOUR: Yes, anything else you’re seeking me to formally read or 15 review?
WHELAN: Just the current care plan, whilst we need to amend the care plan as to permanency we don’t seek to amend it with respect to realistic possibility and there are some submissions that I’ve prepared in relation to the guardianship issue which summarises some of that evidence which might be of some assistance.
Comment: Whelan, Ainsworth and Mc Lachlan knew full well that there was much else that Sally wished Magistrate (redacted) to read; affidavits she wished to submit to Magistrate (redacted).
It is difficult to escape the conclusion that these three men did not want Sally to be in court that day, wasting the court's time, to put it as Dr Ainsworth would subsequently express this to Sally. That Whelan, Ainsworth and Mc Lachlan knew of the affidavits Sally wished to submit to the court is well documented in letters to yourselves, Michael and Gareth. Again, if you have not been properly briefed by your staff, you need to be.
***
HER HONOUR: Yes, are you going to email that document in?
WHELAN: It has already been filed but I can do it now just so it’s easily available.
HER HONOUR: No, it’s all right..(not transcribable)..just identify what the document is for me, please?
WHELAN: it’s the updated case management document of the Secretary and that was submitted to the Court on 16 April 2020
HER HONOUR: Thank you, I was looking for something more recent but yes I’m familiar with that. I want to review that material before I proceed to the finding because I want that material clearly on the record. I’ll just stand the matter down in the list and I’ll return to it as soon as I’ve had an opportunity to do that.
Comments: (1) As of 11 am, 16th November, Magistrate (redacted) had not read any of the material she needed to read in order to make a judgement as serious and significant as the permanent removal of his mother from John's life. (2) Whelan, for FACS was submitting a 7 month old document, which he knew to be out of date. (3) Neither Ainsworth nor McLachlan had any objection to this out-of-date document being presented to Magistrate (redacted)s. (4) Magistrate (redacted) was correct in her wish that she had something more recent to help her make her judgement.
MATTER STOOD IN LIST
Comment: The time when this matter was stood in the list and proceedings re-commenced is relevant here. Given that Magistrate (redacted) had read no documents at all by 11 am, the length of time she spent out of the courtroom is the amount of time she devoted to reading the documents presented to her.
***
HER HONOUR: Yes, I return to the matter of John Smith. I just note for the record that the registry staff had communicated with Ms Smith by email confirming for her that the matter was listed before the Court today. The attempts to telephone her when the matter was earlier before me today failed and the matter went to voice mail and I am instructed that my court officer has attempted to contact her twice without success by telephone from that period until now. Was there anything before I deliver a judgment in respect of the questionof no realistic possibility of restoration?
WHELAN: Only for me to apologise for my lateness.
Comments: (1) Questions relating to Woy Woy court's alleged attempts to contact Sally in relation to 16th Nov have been canvassed in some detail in previous correspondence, and need not be revisited here in any detail. It is worth pointing out again, however, that all recipients of the emailed letter I sent to Dr Ainsworth on the morning of 16th, two hours before the hearing commenced, knew that Sally was living in my house, and knew my telephone number. If her presence was required in court, I could have been alerted to the fact and, if necessary, have driven to (redacted) library to inform Sally. All the evidence suggests that not only was no attempt made to contact Sally, but that some effort was put into guaranteeing she not appear in court. (2) When Magistrate (redacted) asked if there was "anything before I deliver a judgment in respect of the question of no realistic possibility of restoration?" Whelan, McLachlan and Ainsworth knew full well that there was much else that Sally wished to present to the court. (This is all well documented). There are sins of commission and sins of omission, and Whelan, McLachlan and Ainsworth are guilty of the latter. They deliberately and, I suggest, with malice aforethought, withheld from Magistrate (redacted) documents relevant to the hearing. (3) Whelan's apology to Magistrate (redacted) for the late delivery of the FACS affidavit (Friday 13th) highlights the fact that no apology from Whelan, Ainsworth or McLachlan has been forthcoming to Sally. The evidence suggests that Whelan deliberately delivered the FACS affidavit to the court at the last minute in order to deprive Sally the opportunity to read it, absorb it, think about it and instruct her Guardian who, in turn, could have instructed McLachlan. Some investigation needs to be carried out within FACS regarding this. The question you both need to ask, and demand an answer to that passes the pub test is: When was the affidavit completed? If it was completed well in advance of 13th Nov, who within FACS made the decision to wait until the 13th to deliver it to the court and McLachlan?
If Whelan deliberately withheld the affidavit until 13th November, he should be sacked for behaving in a malicious manner towards Sally. The same should apply to whoever, within FACS, instructed Whelan to wait until 13th Nov before submission.
***
HER HONOUR: I did wish to read that affidavit material to refresh my recollection from my judgment and to reread the clinician’s report. The Court has held concerns in relation to the mother’s mental health and the extent to which it has negatively impacted upon her ability to adequately conduct these proceedings to the extent that the Court directed the appointment of a guardian ad litem and (redacted) (?) was appointed.
Comment: Magistrate (redacted) did not have before her, when she made this observation, copious up-to-date documents relating to Sally's mental health. FACS has had on file for quite some time up-to-date reports from clinicians stating that Sally is suffering not from mental illness but from depression brought on by the trauma of losing her children. These documents were deliberately withheld from (redacted) by Ainsworth, McLachlan and Whelan.
***
HER HONOUR: The Court notes its view that Ms Sally Smith is a highly intelligent person and there is no doubt that she loves her son John dearly and in this Court’s view has, if her mental health issues are adequately dealt with the capacity to be an excellent parent.
Comment: At the risk of belabouring the point, Ainsworth, McLachlan and Whelan deliberately withheld from Magistrate (redacted) evidence that Sally's alleged "mental health issues" have been and continue to be "adequately dealt with". Whether this is simple professional incompetence or a deliberate attempt to mislead the court is a question you must both grapple with, Michael and Gareth, and require answers to that pass the pub test.
***
HER HONOUR: The Court particularly notes (redacted) conclusions at para 134 that being that, whilst Sally had previously been given a range of mental health diagnoses by both adult mental health staff and (redacted) during the Family Court proceedings, this does not automatically mean that Sally is unable to parent her child. However it is Sally’s behaviour toward John , her lack of insight into the 50 impact her mental health concerns have on her parenting, her unwillingness to engage in services that raised serious concerns for the safety and well-being of John...(redacted) concluded that Sally has been unable to unwilling to engage in the therapeutic work necessary to ensure she is able to parent John in a safe and emotionally nurturing way. In addition Sally appears isolated from her family or other social supports who would be able to assist her to care for John when she is unwell. Instead, it would seem she has relied upon people to look after John whom she does not know well and that would remove John from his school and home environments.
Comments: (1) That men and women who suffer from mental illness can also be good parents is a truism. In Sally's case, if she did suffer from mental illness when she had her breakdown, it was of a temporary nature. It is, as we all know now, quite common for people whom we consider to be 'sane', to experience an episode of mental illness in their lives. They are no longer punished for this (other than in the case of FACS, that is) but simply get on with their lives when they are well again. (2) That Sally has been unable or unwilling to engage in therapeutic work is quite simply incorrect, as FACS knows. (See copious correspondence relating to this) (3) Why is Sally's isolation from her family relevant? (4) The notion that Sally has no other 'social supports' is wrong, as FACS knows. (See copious correspondence). Three people, one of them myself, have put up their hands to help Sally if and when she needs it. As with all else that contradicts JK's belief that Sally is a bad mother, Magistrate (redacted)) has been misled as regards Sally's social supports.
You will both be familiar with 'confirmation bias'. This matter is a text book example of it. JK decided that Sally was a bad mother and for months now FACS, at every level up to and including yourselves, has ignored any and everything that contradicts JK's bias and cherry-picked documents, no matter how out of date they are, which confirm that bias.
Constraints on my time necessitate that I end this letter here, though I have not finished making my comments.
I trust, Gareth and Michael, that there is sufficient here for you to ask the questions you really do need to ask. There are many. And there are more to come from me, wearing my journalists hat, regardless of whether you choose to answer them or not.
I believe (and suggest) that you should call Sally today and invite her to come into your offices to discuss her case with you in person. You will discover that she is more than capable of advocating on her own behalf, that she will not be deterred by spin doctors lower down in the FACS food chain, that she loves her children dearly and never needed a Guardian - especially not one who refused to represent her but who, instead, fell into the confirmation bias trap.
yours sincerely
James Ricketson
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